Applicant as of
African Union
Cameroon was
Nigeria, though
the day after 13 June 2011, when the Legal Counsel of the
Commission confirmed to the Court that the Republic of
not party to the Protocol and that the Federal Republic of
party to the Protocol, had not made the Declaration as provided
in Article 34 (6) of the Protocol.
ae
Indeed, the issue of the Court’s jurisdiction ought to be devoted, on its
own, a formal decision of the Court only in case of a “dispute” within the
meaning of Article 3 (2) of the Protocol, in other words when an objection based
on jurisdiction is raised pursuant to Rule 52 of the Rules of Court. In all cases
of a “manifest” lack of jurisdiction of the Court, found after a judicial handling
of the application by a small team of judges (judge-rapporteur or a committee of
two or three judges) or which may, de lege ferenda, be arrived at after a strictly
administrative handling of the Application by the Registry, a simple letter
addressed by the latter to the Applicant should suffice. That would enable the
Court to spare its resources and, considering that it does not sit on a full-time
basis, to expedite action on such applications.
8.
Furthermore,
the
adoption
by
the
Court,
as
in the
instant
case,
of a
decision on the lack of jurisdiction whereas the States concerned have not been
served with copies of the Application nor have they been informed of its filing is
challengeable in principle; all the more so in the instant case as the Application
was mentioned on the Court’s website upon receipt. The failure to transmit the
Application to the States concerned further deprived Nigeria (Cameroon not
being party to the Protocol) of the possibility of accepting the jurisdiction of the
Court by way of a forum prorogatum (on this matter, see my separate opinion
above).
9.
In this respect, any application filed against a State party to the Protocol
which has not yet made the optional declaration, should be transmitted, for
information purposes, to that State to enable it to accept the jurisdiction of the
Court to hear the matter’. Since the current practice of the Registry is to register
on the general list all cases submitted to the Court, logically all applications
relating to those cases should systematically be communicated to the States
concemed and published on the website of the Court. The registration of a case
on the general list of a court means that the latter is validly “seized” and that the
case is pending before the said jurisdiction (on this matter, see paragraphs 14, 15
and 16 of my above-mentioned separate opinion).
1 In that scenario, the Registry would inform the Applicant that (1) since the State against
which
the
application
was
filed
did
not make
the
optional
declaration,
the
Court
cannot
entertain his application; (2) the application has been forwarded to this State, for information
purposes; (3) the Court may examine the application if the State concerned decides to accept
the Court’s jurisdiction.